SOME BACK-AND-FORTH BETWEEN EINER ELHAUGE AND RANDY BARNETT on the Individual Mandate. And note this bit from Barnett in particular: “Offering the militia duty as a precedent for the individual insurance mandate is revealing. For it highlights the fundamental question posed by this case: does every citizen of the United States serve at the pleasure of the Congress of the United States in the same manner as a draftee serves in the military? Put another way, does the Congress have the same power over individual citizens as the Captain or Commanding Officer of a militia company? As Justice Kennedy observed during oral argument, this would be to fundamentally alter the relation of the citizen to the federal government.”

I make a related point in my just-published Second Amendment Penumbras piece in the Southern California Law Review.